TORT REFORM THREATENS OUR CONSTITUTIONAL LIBERTIES

In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. - James Madison

Wednesday, Sept. 17 marks the national celebration of Constitution Day, a time to recall the liberties our Constitution sought to protect, preserve and uphold. These fundamental rights are the glue that holds our nation together. Yet, many Americans aren't aware that the Seventh Amendment, which guarantees our right to a trial by jury in civil cases, is currently under attack. Advocates of tort reform are pushing for an overhaul of our civil justice system, which would change centuries-old common law and is in stark opposition to the vision of our Founding Fathers. Here are 10 conversations You Should Know to defend your rights.

The Numbers

1. 79% Drop: The most recent statistics available show that personal injury trials are not clogging up the nation's district courts, dropping by 79 percent from 3,604 cases in 1985 to 800 cases in 2003. (Source: Federal Tort Trials and Verdicts, 2002-2003, Bureau of Justice Statistics)

2. 51.7% Increase: In 2003, Texas imposed an historic $250,000 cap on damages for medical malpractice cases in part to rein in health care premiums. Yet, premiums for family health insurance in Texas rose 51.7 percent from 2003 to 2010. (Source: A Failed Experiment (2011), Public Citizen (download))

3. 75% vs. 10%: More than 75 percent of contracts at 190 well-known companies force customers to accept one-sided arbitration clauses rather than allow complaints to go to court. But only 10 percent of the same companies agreed to arbitration clauses in their contracts with other companies.(Source: Mandatory Arbitration for Customers But Not for Peers (2008): Judicature (download)

The Seventh Amendment Holds the Powerful Accountable

Attacks Posing as Tort Reform Limit Right to Trial by Jury

The Seventh Amendment is based on the centuries-old belief that the best way to protect individuals from the negligence or misconduct of others is through a trial by jury. We believe this fundamental right is under attack today for the same reasons it was targeted during the American Revolution: political power and financial gain. This time around, however, the leaders are the kings of industry and other special interests rather than foreign kings. And instead of the onerous trade laws passed by the British crown, the offending laws at question here are called tort reforms. These laws limit the protections our Constitution provides to those who are injured by defective products, toxic chemicals, medical malpractice and other wrongdoing.

We believe the fundamental right to a trial by jury is under attack again today for the same reasons it was targeted during the 1700s: political power and financial gain. This time around, however, the leaders are the kings of industry and other special interests rather than foreign kings.

Of course, those behind "tort reform" can't force Americans to accept laws that compromise their rights as the British tried to do before the Revolution. So instead, they have put millions of dollars into slick propaganda that they hope will convince the American people - those who stand to lose the most by these measures - to willingly give up their rights. So the next time someone starts one of these conversations, stand up for your constitutional rights and consider the following responses:

Ten Conversations in Defense of Your Rights

1. The legislature should NOT pass tort reform.Tort reform is a code word for laws that limit the rights of people injured by defective products, toxic chemicals, medical malpractice and other wrongdoing. "Tort reforms" upset centuries-old laws that balance the rights of the individual against the advantages of those with power and influence.

2. Our courts are NOT swamped with personal injury lawsuits. Tort case filings (personal injury) have been dropping for years, accounting for only 6 percent of all civil caseloads as documented in this 2010 study by the National Center for State Courts. Contract and small claims cases, many pitting business against business, dominate the court docket.

3. Frivolous lawsuits are NOT ruining America.When a preventable, careless medical error forces a child into a wheelchair for life, it's anything but frivolous, especially if it's your child. The reality is that only 10 percent of injured people seek compensation and only 2 percent file lawsuits, according to the Rand Institute for Civil Justice.

4. Juries are NOT awarding millions in suspect damages.Juries take their jobs very seriously. Plaintiffs actually win more cases in front of a judge than a jury, and the median award was $33,000, according to 2001 statistics from the U.S. Department of Justice.

5. Capping damages on medical malpractice cases will NOT cut the skyrocketing costs of health care. Very few injured patients ever file suit, fewer still take their cases to trial and only a handful win, concluded researchers for a 2011 report by the National Center for State Courts (download). The real crisis is one of medical negligence, not lawsuits. According to a new study published in the Journal of Patient Safety, between 210,000 and 440,000 people die each year from medical mistakes.

6. There is NOT a doctor shortage because of malpractice lawsuits"Statistics from the American Medical Association (download) don't support that statement. The total number of active physicians grew from 718,045 in 2000 to 877,233 in 2010, which represented a 22 percent increase.

7. Lawsuits are NOT killing small businesses in America.In a study conducted by the National Federation of Independent Business, 3,500 small-business owners were asked to rank the problems they face. "Costs and Frequency of Lawsuits/Threatened Suits" ranked 65 out of 75, barely beating out "solid and hazardous waste disposal." (Download report.)

8. "Personal injury lawyers do NOT charge outrageous hourly fees." Civil justice attorneys do not charge by the hour. Instead, their clients pay on a "contingency fee basis." This allows people who cannot afford hefty legal fees to retain an accomplished attorney without paying anything up front. Only if the attorney and the client win the case does the attorney receive a percentage of the money collected.

9. "Schools are NOT canceling recess because of litigation." School districts across the country are almost universal in blaming the elimination of recess on the need to meet requirements for teaching and testing hours (read story).

10. "Volunteer Little League coaches do NOT need to worry that they might be sued." The Volunteer Protection Act of 1997 gives immunity to volunteers of nonprofits in the course of their charitable work.

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